1. The petitioner, Shri K. George, Advocate was a candidate for direct selection as a Munsiff in this State. The Kerala Public Service Commission considered him suitable, allotted him rank No. 13, and recommended his appointment.
2. Ext.P-1 dated 30-10-1961 is the Memorandum issued to the petitioner by the Public Service Commission. It reads as follows:
'Shri K. George is informed that he has been selected for recruitment as Munsiff on Rs. 300-700 per mensem in the Judicial Department. The selection is subject to satisfactory proof of health, whatever further checking Government may find it necessary to do.
Further instructions will be issued to him in due course by the Department referred to in the paragraph above.'
The petitioner, however, was not given an appointment by the State, even though candidates who were ranked lower than him by the Public 'Service Commission have been appointed and posted as Munsiff s.
3. The notification issued by the Public Service Commission inviting applications for recruitment is dated 22-2-1961, and was published in the Kerala Gazette dated 28-2-1961. Paragraph IV of that notification provided that the candidates should satisfy the conditions specified in that paragraph.
One of those conditions is that the candidates 'should be of such character and antecedents as to qualify them for appointment.'
4. Paragraph 6 of the affidavit filed on behalf of the State gives the reason for the non-appointment of the petitioner as follows:
The petitioner could not be appointed to the post to which he was advised by the Kerala Public Service Commission as it was found on verification of his character and antecedents that he was not suitable for appointment.'
The affidavit also draws attention to Rule 2(a) (i) of the Kerala Judicial Service (Recruitment of Munsiffs) Rules which says that 'no person shall be eligibly for appointment as Munsiff unless his character and antecedents are such as to qualify him for such appointment'; and to Rule 10(b) (ii) of the Kerala State and Subordinate Services Rules, 1958, which provides that 'no person shall be eligible for appointment to any service by direct recruitment unless the appointing authority is satisfied that his character and antecedents are such as to qualify him for such service.'
5. The contention of the petitioner is not that his character and antecedents should not be verified or that he should be appointed in case they are found to be not satisfactory on such verification. His contention is that only tests which are relevant should be applied in the evaluation of a person's character and antecedents; that tests which are irrelevant will violate the fundamental right guaranteed by Article 16(1) of the Constitution; and that if relevant tests alone had been applied, his character and antecedents would have been found to be quite suitable and satisfactory for his appointment as a Munsiff. He also emphasises the fact that he is a continuing member of an honoured profession; and that he has not at any time, given any occasion to either the Judiciary or the Bar Council to doubt the quality of his character and antecedents.
6. The petitioner is an Advocate practising at Kottayam and his application for recruitment was forwarded through the District Judge of Kottayam as required by Rule 4 (c) of the Kerala Judicial Service (Recruitment of Munsiffs) Rules. That rule also provides that in forwarding the applications the District Judge shall say whether in his opinion 'there is any reason for considering a candidate prima facie unsuitable for appointment to the Judicial Service'. It is not contended that the District Judge of Kottayam made any adverse remark about the petitioner.
7. Ext.P-2 dated 21-3-1962 embodies the resolutions passed by the Kottayam Bar Association regarding the appointment of petitioner. It reads as follows:
'This Association while viewing with concern the omission of Sri. K. George from the list of names selected by the Government as Munsiffs, requests the Government to include him also in the list and assign him the rank recommended by the Public Service Commission.
Further it is resolved that a deputation consisting of Messrs. N. Govinda Menon, Thomas Jacob and K. N. Sankara Kurup (Secretary), members of the Association, present the above resolution in person to the authorities concerned.' In pursuance of the second resolution the three Advocates mentioned therein waited on the Minister concerned. Ext. P-3 dated 21-3-1962 is their representation in writing, and it is stated in Paragraph 11 of the affidavit in support of the OriginalPetition that the representation was in terms approved by the Bar Association of Kottayam. Ext. P-3 reads as follows:
'We presume that Sri K. George is omitted on the basis of confidential reports on his antecedents.
As a member of the Kottayam Bar, we know Sri K. George intimately and we emphatically assert that Sri K. George is a man of exceptionally good character and to our best knowledge and belief has no objectionable antecedents.
We have therefore every reason to presume that the allegations in the confidential report must necessarily be false and unmerited and we ardently feel that the possibility of an error on judgment should be investigated at the earliest opportunity giving if necessary an opportunity to the aggrieved to disprove the alleged report and vindicate himself.
8. Article 16(1) of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating 'to employment or appointment to any office under the State. The sole question for determination is whether the equality guaranteed by this provision has been violated in this case or not
9. The content of Article 16 of the Constitution has been the subject of discussion before the Supreme Court of India. In Banarsidas v. State of Uttar Pradesh, (S) AIR 1956 SC 520 that Court said:
'Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government. Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government'; and in Krishnan Chander Nayar v. The Chairman, Central Tractor Origanisation, AIR 1962 S. C. 602: The fundamental right guaranteed by the Constitution is not only to make an application for a post under the Government but the further right to be considered on merits for the post for which an application has been made. Of course, the right does not extend to being actually appointed to the post for which an application may have been made.'
10. In Sukhanandan Thakur v. State of Bihar: (S) AIR 1957 Pat 617 Ramaswami, J., had occasion to deal with the equality guaranteed by Article 16(1) of the Constitution. He said:
'It is manifest that equality of opportunity mentioned in Article 16(1) is not a mathematical equality. It is equally manifest that Article 16(1) does not preclude the administrative authority from making a selection from numerous candidates before making appointments; but the selective test employed must be reasonable and not arbitrary. The selective test must be based upon some reasonable principle. Otherwise the principle of equality of opportunity would be infringed. In my opinion no selective test can be reasonable unless there is some proximate connection between the selective test and sufficient performance of the duties and obligations of the particular office. I must make it clear that the administrative authority has a wide range of discretion in making the appointment.
The administrative authority may lay down qualifications for the office--qualifications not only of mental excellence but also of physical fitness, sense of discipline, moral integrity andloyalty to the State. In the case of technical appointments the administrative authorities may further require evidence of technical qualification and Standards.'
11. It is clear from what is stated above that what is expected from the State in the matter of appointments is very much the same as what is expected from a public body in the United King-dom. The powers of a public body in that behalf came up for consideration in Short v. Poole Corporation (1926) 1 Ch. 66, a case of the termination of the services of a school teacher. Warrington, L. J., said:
'No public body can be regarded as having statutory authority to act in bad faith or front corrupt motives, and any action purporting to be that of the body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.
It may be also possible to prove that an actof the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide. To look for one example germane to the present case, I suppose that if the defendants were to dismiss a teacher because she had red hair, or for someequally frivolous and foolish reason, the Court would declare the attempted dismissal to be void.'
12. To the same effect is the observation ofthe Supreme Court in Pandurangarao v. The Andhra Pradesh Public Service Commission, Hyderabad AIR 1963 S.C. 268. In that case Gajendragadkar, J., said:
'If, while prescribing relevant tests which must be satisfied by an applicant, the rule had stated that the applicant should satisfy the test of a particular height or colour for instance, which factors are irrelevant for Judicial service- the respondents could not be heard to say that because the other rules are valid, the irrelevant rule about the requirement of the applicant's height or colour must also be treated as valid. If the height or colour of the applicant is wholly irrelevant in making an appointment to a judicial post, it must be treated as irrelevant and invalid though it may have been placed in a code of rules and the rest of the rules may be perfectly valid.'
13. This is not a case in which we can say there has been a lack of bona fides. In order todecide the petition in favour of the petitioner, therefore, we must be able to say that the conclusion of the State that the petitioner's character and antecedents are not suitable for the appointment is based on considerations which are irrelevant andwhich should not have been taken into account.
14. Suppose, for example, the view of theState was that only candidates above a particular height or below a particular weight can be considered as the possessors of a satisfactory character and a test of that basis was formulated and applied, it will be easy for a Court to strike down that test and upset its application. But in cases where the tests are not so patently absurd or irrelevant, the position will naturally be different. The duty and the responsibility in these matters are primarily that of the State; its discretion by its very nature will have to be large and untrammelled; and a Court cannot possibly substitute its own yardstickfor that of the Government of the day.
15. All that a Court can say is something very general, that the character and antecedents of a candidate for judicial appointment must be such as to ensure that he will--in the words of the Judge's oath provided in the Constitution -- duly and faithfully and to the best of his ability, knowledge and Judgment perform the duties of his office without fear or favour, affection or ill will and that he will uphold the Constitution and the laws. What exactly are the elements that will evidence and ensure such a character is the privilege and the duty of the appointing authority and not of a Court to decide.
16. One of the questions that came up for discussion during the hearing was whether the fact that a candidate is a communist will be a relevant consideration for excluding him from any appointment. According to counsel for the petitioner such a consideration will be an irrelevant consideration and an exclusion based on such a ground will be violative of Article 16(1) of the Constitution. We are not at all certain that the submission is correct.
17. Ideas rule mankind; and here we are in the realms of ideologies and their reactions on the make-up and loyalties of a man. The yard-stick to be applied will not be mechanical but elastic: various factors--the extent of the dedication, the needs and temptations of the post concerned, the circumstances obtaining at the time of the appointment, all these and more must enter into the calculation and influence the conclusion. In such a region a Court should not and will not, as already indicated, substitute its own opinions for those of the executive with which rests the primary duty of appointment and the entire responsibility therefor.
18. A recent Conference of the Privy Councilors in England consisting of the Lord President of the Council, the Lord Chancellor, the Secretary of State for the Home Department and others had occasion to consider the impact of the communist faith on the security procedures in England. It said:
'The Communist faith overrides a man's normal loyalties to his country and induces the belief that it is justifiable to hand over secret information to the Communist Party or to the Communist foreign Power. This risk from communists is not, however, confined to party members, either open or underground, but extends to sympathisers with Coumunism.'
19. Suppose a State of the Indian Union comes to the conclusion, bona fide that the position is the same within its confines and refuses to appoint a dedicated communist to a post in which his loyalty to the State is of paramount importance, a Court in our opinion, will not be justified in altering the conclusion and directing an appointment. The question is not whether the practicular philosophy to which a candidate is addicted is right or wrong, or whether the practice and propagation of that philosophy have been banned or not. The only question is whether the tenets of that philosophy will produce approaches and reactions which will help or hinder the proper discharge of the duties of a specific post or office.
20. The learned Government Pleader submitted that he is prepared to produce the file relating to the petitioner provided it is treated as confidential and no access to it is afforded to the petitioner or his counsel. Counsel for the petitioner agreed that we may look into the file on that basis, and we have done so. As the file has to be treated as confidential we can only state our conclusion, and not discuss the reasons therefor. That conclusion is that on the facts disclosed we will not be justified in saying that irrelevant considerations have induced the refusal of an appointment to the petitioner.
21. It follows that the Original-Petition hasto be dismissed, and we do so without costs; andwith the closing observation that the dismissal ofthe petition spells only a refusal to interfere underArticle 226 of the Constitution and not any expression of opinion on our part as to the character andantecedents of the petitioner.